Research On Pre-litigation Procedure For Prosecutorial Administrative Public Interest Litigation

The pre-litigation procedure of administrative public interest litigation filed by procuratorial organ is an important part of administrative public interest litigation.It plays an effective role in safeguarding the public interest of the state and society,and urging the administrative organs to promptly correct illegal acts and take the initiative in accordance with the law.The pre-litigation procedure of administrative public interest litigation is outstanding in judicial practice,but there are still many problems.The author selected 126 referee documents in the refereeing documents network,and combined with the ten guiding cases of the prosecutorial public interest litisation issued by the Supreme People's Procuratorate,through the case analysis method,found that the pre-litigation procedure of administrative public interest litigation has the following problems in practice:firstly the administrative organ is unclear about the requirements of "executing duties according to law".After receiving the procuratorial proposals,it still does not perform its duties or does not fully perform its duties.It cannot maintain the public interest of the state and society in a timely manner.Secondly,the time limit for the procuratorial recommendations is unreasonable.The agency does not have enough time to imply administrative actions within the time limit for the procuratorial recommendation response,and it could not guarantee that the public interest of the state and society would be fullv relieved.Finally,the procuratorial recommendations and their responses are not standardized and too broad.And the content of the prosecutorial proposal is not relevant to the public interest litigation request.In order to solve the above problems,it is necessary to analyze the cause of the problem.In view of the unclear understanding of the requirements of the administrative organs for "executing duties according to law",some administrative organs believe that they should perform their duties in a timely manner,but the procuratorial organs have imposed higher effective requirements on the performance of their duties according to law.Based on the different functions of the pre-litigation procedure of administrative public interest litisation.the complexity of social public welfare damage,and the professionalism and finiteness of the functions of the administrative organs,the pre-litigation procedure is not necessary to fully realize the national and social public interests.For the purpose,it should not impose excessively effective requirements on the administrative actions before the complaint.The criteria for "following duties according to law" should be determined from three aspects:"recovering procuratorial suggestions in a timely manner","correcting illegal acts",and "exhausting administrative means within the time limit of responses".In view of the unreasonable setting of the procuratorial recommendation response period,given the complexity of administrative actions,the administrative agency needs certain statutory procedures and cooperation with multiple relevant departments to perform its duties.The current procuratorial recommendation response period can neither guarantee the administrative agency to exhaust the administrative means,nor guarantee the effectiveness of the pre-trial administrative actions.In this regard,the author believes that the prosecutorial agency's pre-litigation hearing system can be established,when the administrative organs fail to perform its duties adequately or exhaustively in the pre-litigation procedure,the administrative agency can still apply to the procuratorate to give it more time.The long duty of performance is continuously followed up and supervised by the procuratorate to ultimately achieve the purpose of safeguarding the state and social welfare.In view of the procuratorial recommendations and the irregular content of their replies,it is imperative to establish a set of general content specification requirements on the premise that the current laws and regulations do not clarify the procuratorial recommendations and their responses.Based on the finiteness of judicial resources and the position of judicial restraint,procuratorial suggestions only need to state:preliminary proofs of damage to state and social public welfare,facts and legal basis for administrative organs to violate their functions or inaction.public interest damage and administrative actions.The causal relationship between the procLuratorial organs and the procuratorial organs hope that the administrative organs will achieve the results through the pre-litigation administrative actions.The content of the procuratorial suggestion reply shall include the administrative actions and effects that have been made in the pre-litigation procedures of the administrative organ.the status quo and the damage of the social welfare.If the public interest of the state and society is still in a state of being damaged,the administrative organ should specify the unexplained administrative means and reasons,as well as the specific plans for the subsequent performance of the law.